On February 19, the Heartland Institute’s General Counsel, Maureen Martin, sent a letter by e-mail and post addressed to Think Progress in response to revelations about the Institute. Yesterday, Debbie Fine, General Counsel for the Center for American Progress Action Fund, replied to Martin.

I am General Counsel of the Center for American Progress Action Fund (“CAP Action”). This letter responds to your February 19 message regarding our reporters’ coverage of documents related to the Heartland Institute. Please be assured that CAP Action takes the accuracy of its reporting seriously.

Your letter asserts that the document entitled “2012 Heartland Climate Strategy” is “fabricated and false.” CAP Action has no interest in attributing a fabricated document to Heartland. Given the seriousness of this charge, and the fact that this document’s “tone and content closely matched that of other documents that [Heartland] did not dispute,”1 we ask your assistance in verifying that the document is in fact “fabricated” rather than, for example, a draft of which you were not immediately aware. Please let me know the efforts that Heartland undertook to ensure that the document “was not written by anyone associated with Heartland,” as well as the “obvious and gross misstatements of fact” it contains. We have removed this document from the website while awaiting your response.

Your letter also notes that “Heartland has not authenticated” the remaining documents in the week since they were made public. To my knowledge, Heartland has never claimed that these documents were fabricated, and your February 15 admission that they were sent by a Heartland staff person to “an unknown person” posing as a Heartland board member suggests they are genuine. So does Heartland’s February 15 apology to the donors identified in the documents. Subsequently, the newly-admitted source has indicated that he received these documents directly from Heartland and has not altered them. Nevertheless, we await the outcome of your continued efforts to “authenticate” these documents.

Finally, your letter suggests that publication or even discussion of the Heartland documents “is improper and unlawful” because Heartland deems them “confidential.” The Supreme Court has flatly rejected this notion, repeatedly declaring that the First Amendment protects the right to publish information obtained lawfully – even if underlying sources act improperly, erroneously, or in violation of the law. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 535 (2001). As CAP Action has reported, our bloggers received the documents via an anonymous email. Our reporters did nothing to purloin any documents, they did not encourage anyone else to do so, and they did not know the sender’s identity until many days later, on February 20, when the Huffington Post article titled: “The Origin of the Heartland Documents” was published. Faced with a substantially similar set of relevant facts in Bartnicki, the Supreme Court ruled that the First Amendment prohibited recovery of damages for dissemination of an illegally-made recording that was left in a defendant’s mailbox because “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id.; see also Jean v. Massachusetts State Police, 492 F.3d 24, 29 (1st Cir. 2007) (applying Bartnicki). The same is true here, although we note that CAP Action takes no position as to whether the documents were lawfully obtained by the source.

CAP Action has taken extraordinary steps to ensure that Heartland’s perspective on these documents is included in our coverage. As your letter notes, CAP Action immediately and conspicuously linked to Heartland’s February 15 press release regarding the documents and has subsequently noted Heartland’s assertions in other blog posts in order to ensure that your position on these documents was reported fully and fairly. If you would like to provide us with additional information, including answers to the questions above, we will certainly consider it.

This is not a full recitation of the relevant facts and CAP Action reserves all its rights, remedies and defenses concerning these issues.

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19 Responses to CAPAF General Counsel Responds To Heartland Institute

Nice summary of the law and the situation. I left a comment on the Heritage but it did not seem to pass their review.

These guys at Heritage say with a straight face that they are doing analysis that contributes to scientific advances.

I objected to the “National Center for Science Education” (NCSE) being described as a “left wing organization.” NCSE supports the teaching of evolution and, more recently, climate science in public schools. In my view, teaching science in public schools is not and should not be a partisan issue.

Rick Santorem recently stated that climate science is purely political. This really makes me scratch my head. “Scientific data and reports are political when they seemingly conflict with the political philosphy of a politician (?).

Just a small point maybe but it is The Heartland Institute under the microscope and not The Heritage Foundation. I have seen similar mix-up at Skeptical Science of late.

BTW I am one who views the activities of these Think Tanks with disgust and even more for those paid scientists who tout for them some seen in a promotional video trailer linked to at Desmog in a John Mashey post (well done John – your work is the real crippler for Heartland) in the last 24 hours.

It is high time all this alphabet soup of entities was put under closer scrutiny. One only has to look at the names that crop up across them to see some of the web of deceit.

Debbie Fine must be an excellent attorney to write such a clear and well thought out response.

Heartland has been busted, and is really just making reflexive- and pathetic- attempts to go on offense.

Climate Progress readers have long been aware of what Heartland is all about. This incident should result in revocation of their tax exempt status, since they are clearly functioning as propaganda instruments for the fossil fuel companies.

The IRS needs to act on this, and investigate CEI, Cato, AEI, and all the rest of the phony “think tanks” while they’re at it. All of the thinking they ever do is “What distortion of facts can I come up with to earn my next check?”

Good summary of the law. It seems to me that the situation and the law also call for: A rigorous, detailed, thorough summary of: (a)instances in which Heartland has published claims that are without fear of contradiction untruths about about climate science such as the claims that the entire consensus position is a hoax or there is no evidence of human causation, claims that are not conclusions derived from reasonable skepticism but obvious untruths, (b) claims which grossly distort the peer-reviewed literature such as the claim that the upper atmosphere is warming, (c) promises they have made funders about their activities, and (d) who the funders are.

It is more likely than not, that it can be demonstrated that Heartland is engaged in ethical violations recognized by relevant business codes,not to mention practices that have other tort and legal significance, and for this reason a thorough investigation of Heartland’s practices is called for. This was the response to the email gate controversy called for by the climate change disinformation echo chamber. The charges discovered in the emails were serious enough to call for an investigation and I believe between five and seven separate investigations followed. A case can be made that the issues raised by Heartland documents call for an investigation to see if Heartland is violating professional codes or otherwise engaged in unethical conduct with potential legal significance. A thorough, rigorous, detailed investigation of Heartland’s practices is needed by someone that has the resources to do this.

You make very important points here. You have the academic credentials as an ethicist to raise these question so I would encourage you to submit an op-ed piece to the New York Times first and if they turn you down send it to the Huffington Post.

Heartland does not claim to be A PR firm, although it obviously is one. But one need not go there. See Fake science, ….

Read first 3 pages for context, then check section 0.4 which takes IRS information and tags possible violations with red IRS-* tags, and then the rest of the document sprinkles those tags on Heartland’s words.
I allege that they break those rules pervasively.

I don’t know how students in public schools are EVER going to learn any actual science with everyone pushing their political agenda. First the intelligent design people have their way with science classrooms and now this. I’ve written a petition asking the Heartland Institute to desist from pushing bad science on schools:http://www.thepetitionsite.com/1/dont-push-bad-science-in-our-schools/

As part of our global nonprofit software donation program, Microsoft provides free software licenses upon request to any eligible non-profit organization. In Fiscal Year 2011, Microsoft donated $844 million in software to 44,000 nonprofits around the world. As part of that program, the organization requested free software licenses, and Microsoft provided them, just like we do for thousands of other eligible non-profits every year.

Microsoft’s position on climate change remains unchanged. Microsoft believes climate change is a serious issue that demands immediate, worldwide attention and we are acting accordingly. We are pursuing strategies and taking actions that are consistent with a strong commitment to reducing our own impact as well as the impact of our products. In addition, Microsoft has adopted a broad policy statement on climate change that expresses support for government action to create market-based mechanisms to address climate change.

“Nonprofit and nongovernmental organizations must hold recognized, charitable status as defined in their countries in order to be eligible for a software donation. Eligible organizations will operate on a not-for-profit basis and have a mission to benefit the local community that could include, but is not limited to:

Oh, and on a more general note. I fully support Peter Gleick. Like people such as Tim DeChristopher before him (who ended up in jail for two years for stopping an illegal auction of public lands near Canyonland, Utah, through faking participation and joining in the bidding) he made the morally right choice when confronted with an appaling injustice. As a parent and scientist I can only stand in awe.

I agree. Microsoft should issue a public statement that it will no longer contribute any money to the Heartland Institute, because of HI’s climate disinformation program. MS should publicize their decision widely and urge other companies to follow their lead.

Here (despite being the owner of the CA UNIX license plate), I must actually defend Microsoft’s past actions in providing free/cheap SW to nonprofits.
This is fundamentally different from writing checks to Heartland.

IF a group has 501(c)(3) status, it is because the Federal Government grants that. I cannot imagine that a company like MS has someone researching what a charity does, as opposed to what it claims it does. I alleged in “Fake science” that a certain set of charities were really just advocacy entities, but that is a tiny fraction of real charities.

Anyway, I’d bet that in MS, the decision to supply SW is made at a very low level, likely by someone who may never even have heard of Heartland.

On the other hand, people who write 5,6,7-digit checks ought to know who they funding. For corporations, the interesting question is;

does the money come from a charity group within the corportation?

Or does it come from another cost center, say like PR/marketing?

That’s a question people might be asking, indeed along with the “Will Microsoft keep doing this for Heartland?”

It would be interesting to know about current affords to get data center electricity supply generations off of coal powered plants. Greenpeace done some number crunching last year, did anything changed since then?